Tribe: No 14th Amendment solution

One of President Barack Obama’s most enthusiastic supporters, Harvard Law professor Laurence Tribe, said on Friday the White House and Congress can’t fall back on the 14th Amendment to make an end run around the current debt crisis.

Writing on the New York Times op-ed page, Tribe, who once called Obama the “best student I ever had,” said the idea that a president can use the 14th Amendment to borrow money without regard to Congress provides “the false hope of a legal answer that obviates the need for a real solution.”

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“Several law professors and senators, and even Treasury Secretary Timothy F. Geithner, have suggested that section 4 of the 14th Amendment, known as the public debt clause, might provide a silver bullet,” Tribe said. “This provision states that ‘the validity of the public debt of the United States, authorized by law … shall not be questioned.’ They argue that the public debt clause is sufficient to nullify the ceiling — or can be used to permit the president to borrow money without regard to the ceiling.”

But the president has very little authority to borrow money, Tribe wrote, without explicit approval from Congress, especially if Congress forbids it.

“The Constitution grants only Congress — not the president — the power ‘to borrow money on the credit of the United States,’” Tribe wrote. “Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution. Moreover, it is well established that the president’s power drops to what Justice Robert H. Jackson called its “lowest ebb” when exercised against the express will of Congress.”

In response to Tribe’s op-ed, the Treasury Department took the professor to task and said Geithner has never suggested the 14th Amendment could be used as a way out of the debt crisis.

George Madison, the department’s general counsel, said in a letter to the editor of the Times that Geithner “has never argued that the 14th amendment to the U.S. Constitution allows the president to disregard the statutory debt limit.”

Geithner has insisted that “Congress has an obligation to ensure we are able to honor the obligations of the United States,” Madison added. “Like every previous Secretary of the Treasury who has confronted the question, Secretary Geithner has always viewed the debt limit as a binding legal constraint that can only be raised by Congress.”

In the Times, Tribe said Obama must compromise with Republicans to reach a deal on the debt ceiling, writing, “Only political courage and compromise, coupled with adherence to traditions that call upon Congress to fulfill its unique constitutional duty, can avert an impending crisis.”

The op-ed is not the first time Tribe has taken an indirect shot at his former pupil’s administration.